Eric O. Gionet

The defendant counterclaimed against the plaintiff for $6,097.25 for unpaid invoices.

Neither party led any evidence or made any submissions regarding the counterclaim during the trial.

As a result, the court issued supplementary reasons dismissing the counterclaim.

The plaintiff general contractor sued the defendant flooring subcontractor for breach of contract after the installed resilient flooring exhibited loose, lifting, and telegraphing tiles.

The plaintiff replaced the defective flooring and sought to recover the costs.

The defendant argued the issues were caused by excess moisture in the concrete slab, for which it had obtained a liability release.

The court found that the defendant failed to properly prepare the concrete substrate in accordance with the contract specifications, causing the delamination and telegraphing.

The plaintiff was awarded the replacement costs, less the amount claimed for profit.

The plaintiffs and defendant owned adjacent properties sharing a laneway subject to a right of way.

The plaintiffs relied on a catchbasin in the laneway for drainage.

The defendant's partner poured a concrete pad over the catchbasin, rendering it inoperable and causing significant flooding to the plaintiffs' property, which prevented them from renting out apartments.

The court found that the right of way included the right to use and maintain the drainage infrastructure.

The defendant's actions constituted a substantial interference and a nuisance.

The court ordered the reinstatement of the catchbasin, enjoined the defendant from blocking the laneway, and awarded the plaintiffs $100,000 in damages for lost rental income and repair costs.

This decision concerns the costs arising from a dispute between a daughter and son-in-law (Palmieris) and the father (Alaimo) over a house built on Alaimo's property.

The parties initially agreed to arbitration, but Alaimo subsequently challenged the arbitration agreement and award, necessitating two applications before the court.

The Palmieris were successful in enforcing the arbitration award and defending Alaimo's challenges.

The court considered Alaimo's conduct, which unnecessarily lengthened the proceedings and involved advancing meritless positions, including an opportunistic allegation of bias against the arbitrator and unfounded claims regarding the arbitration agreement's payment terms.

Applying Rule 57.01(e) and (f)(i) and principles from Boucher v. Public Accountants, the court awarded the Palmieris $57,800 in all-inclusive costs.

The applicants sought to enforce an arbitration award requiring the respondent to pay a sum determined by a mathematical calculation based on the dwelling's fair cost and a mortgage amount.

The respondent argued a trial was necessary to address issues like the mortgage amount, alleged fraud, and unconscionability.

The court found that the arbitration agreement clearly outlined the payment mechanism and the arbitrator's limited role.

It determined that the "forensic machinery of a trial" was not required, as the contractual issue could be resolved by reviewing the existing evidence.

The court enforced the award, ordering the respondent to pay the calculated difference and arbitration costs.

The appellant purchaser appealed a summary judgment ordering it to pay approximately $100,000 in real estate commission to the respondent brokerage.

The appellant argued the motion judge erred in making credibility determinations without a trial and in finding the Buyer Representation Agreement had not been terminated.

The Court of Appeal dismissed the appeal, holding that the motion judge correctly applied the summary judgment framework and her factual findings were solidly grounded in the evidence.

The moving party sought to set aside noting in default entered against it in relation to a counterclaim and crossclaim in consolidated construction lien proceedings and also sought to strike portions of the responding parties’ pleadings.

The court applied the test for setting aside default in construction lien actions, requiring a reasonable explanation for delay, a continuing intention to defend, and evidence of a meritorious defence.

The court found these criteria satisfied and set aside the noting in default.

The court further held that breach of trust allegations contained in the pleadings were barred under s. 50(2) of the Construction Lien Act because trust claims cannot be joined with lien claims, even when raised by counterclaim or crossclaim.

The offending paragraphs were struck, with leave to amend pleadings in compliance with the statute.

Following dismissal of a motion seeking numerous forms of relief in a construction lien dispute, several successful parties sought costs against the moving owners.

The court considered the presumption that successful litigants receive costs and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court rejected arguments that alleged misconduct by the successful parties disentitled them to costs and held that the motion was largely unsuccessful and unnecessary in several respects.

Full recovery costs were awarded to one contractor whose claim should never have been contested, while partial indemnity costs were granted to the contractor and subcontractors in reduced amounts to remain fair and proportionate.

The applicants built a house on the respondent's property.

After a falling out, the parties agreed to arbitrate the fair cost of construction using a quantity surveyor.

The arbitrator issued a draft reproduction estimate, but the respondent terminated his counsel and refused to participate further, alleging bias and procedural unfairness.

The applicants sought to enforce the final arbitral award, while the respondent sought a declaration that he was not bound by it.

The court dismissed the respondent's claims of bias and jurisdictional overreach, finding the Arbitration Act applied.

However, because the final award failed to explicitly state its reasons, the court remitted it to the arbitrator to formally attach the reproduction estimate as reasons.

The plaintiff contractor sued the defendant homeowners for unpaid invoices relating to a home renovation and addition.

The parties had not signed a written contract.

The plaintiff argued the agreement was a 'cost plus' contract, while the defendants argued it was a fixed price contract based on an initial verbal estimate.

The court found the agreement was a cost plus contract, noting the defendants had previously paid an invoice detailing materials, sub-trades, and contractor profit without objection.

However, the court reduced the plaintiff's claim by $5,000 due to the plaintiff's failure to bill labour accurately and provide timely invoices as costs escalated.

The defendants' counterclaim for delay-related expenses was dismissed.

The moving parties, owners of a motel, brought a motion under s. 47(1) of the Construction Lien Act to discharge or vacate several construction liens registered by the contractor and subcontractors.

The owners argued the liens should be discharged or, alternatively, vacated upon posting $100,000 as security.

The court dismissed the motion, finding that a motion to discharge a lien is akin to a summary judgment motion and there were numerous genuine issues of material fact requiring a trial, including responsibility for delays, scope of the contract, and quality of work.

The court also declined to arbitrarily reduce the security amount required to vacate the liens from the $489,000 claimed.

The appellant employer appealed a trial decision finding it had constructively dismissed the respondent and awarding damages based on a 16-month notice period.

The employer argued the trial judge erred in taking judicial notice of the mining industry's cyclical nature, finding the respondent was not obliged to accept a recall position to mitigate, setting a 16-month notice period, and determining the termination date under the Employment Standards Act.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions were supported by the evidence and that the respondent was constructively dismissed upon recall to a substantially different position.

The plaintiff subcontractor moved for summary judgment for an unpaid balance under an electrical subcontract on a school construction project, while the defendant contractor cross-moved for a declaration that no further payment was owing unless and until it received further payment from the owner.

The dispute turned on the interpretation of a pay when paid condition precedent tied to payment of certified amounts by the owner.

The court held that the condition was satisfied once the contractor had been paid the certificates in which the subcontractor's amounts were included, notwithstanding the contractor's later invoice reduction for unrelated deficiencies.

Summary judgment was granted to the subcontractor for the unpaid balance, subject only to any agreed adjustment for minor deficiencies.

Following trial reasons awarding the plaintiff sixteen months’ notice damages for wrongful dismissal, the court considered post‑trial submissions regarding whether “other commissions” should be included in the damages calculation for the notice period.

The original decision calculated damages based on commissions the plaintiff would have earned from October 2009 to January 2011.

The judge noted that the evidentiary record did not recall proof of additional commissions payable during that period.

The court indicated willingness to receive further submissions if evidence existed establishing entitlement to additional commissions within the notice period.

The plaintiff, a highly successful salesman who managed a lucrative drill rig production account, agreed to a temporary layoff during an economic downturn.

Upon his recall, the defendant employer offered him a vague sales position that excluded the lucrative drill rig account, fundamentally altering his duties and compensation.

The court found the plaintiff was constructively dismissed and was not required to mitigate his damages by accepting the ill-defined new role.

The plaintiff was awarded 16 months' pay in lieu of notice.

The appellant insurer appealed a jury-based judgment awarding life insurance proceeds to the respondent beneficiary.

The sole issue was whether the trial judge erred in instructing the jury on the meaning of a change in insurability under s. 180(1)(c) of the Insurance Act.

The court held that, given the insurer's own delivery form and underwriting evidence, insurability was properly linked to the insured's state of health in the circumstances of this case.

The appeal was dismissed and appeal costs were fixed at $10,500 inclusive.

The plaintiff supplier brought a motion for summary judgment alleging breach of the statutory trust provisions under s. 8 of the Construction Lien Act arising from a construction project.

The contractor received deposit funds from the project owners and failed to pay the plaintiff for materials supplied, instead applying the funds to overhead and operational expenses.

The court held that the deposit and outstanding amounts payable by the project owners constituted trust funds within the meaning of the Act.

The contractor breached the trust by using the funds before paying trust beneficiaries, and its directors and officers were found personally liable under s. 13 for knowingly permitting the breach.

Summary judgment was granted and the outstanding amount owing to the supplier was awarded.

The appellants appealed a judgment regarding the dedication and acceptance of land.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact on dedication and acceptance were supported by the evidence and entitled to deference, and that there was no error in the application of the law to those facts.

The appellant hospital appealed a partial summary judgment awarding the respondent architectural firm over $1 million in a construction lien action.

The motion judge had relied on an 'admission' letter sent by the hospital following a pre-trial conference.

The Divisional Court allowed the appeal and set aside the summary judgment, finding that the motion judge erred by relying on the pre-trial communication contrary to Rule 50.03 of the Rules of Civil Procedure.

The Court also found that affidavit evidence from a peer-review architect raised a genuine issue for trial regarding the completion of the contract and the validity of the invoices.

The appellant insurer appealed a trial judgment finding that an all risks insurance policy covered damage to the respondent marina's forklift caused by a disgruntled former employee.

The Court of Appeal upheld the trial judge's finding that the exclusion clause relied upon by the insurer was ambiguous and should be interpreted narrowly against the insurer (contra proferentem).

The appeal was allowed in part, on consent, only to reduce the damages awarded to the $50,000 limit under the simplified rules.